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Australian poll overwhelmingly in favour of legalising same-sex marriage

There has been building pressure in Australia for same-sex couples to be able to marry, and after this historic vote the appropriate law change will be debated in parliament.  The government is aiming for the legislation to be passed by Christmas.

The parliament will need to consider not only the marriage but also the law dealing with any subsequent separation.

We have had same sex marriages taking place in England and Wales since 29 March 2014.  

These couples can benefit from the certainty of pre-nuptial or post-nuptial agreements dealing with their finances, particularly where they each own property or other assets at the time of their marriage, just like heterosexual couples.

If a same-sex married couple later separate and divorce then the procedure for ending their marriage in England and Wales is almost exactly the same as a heterosexual couple.

To have a binding financial settlement on separation, any married couple, same-sex or heterosexual, need to have a financial order made by the court as part of their divorce. This can either be by consent or imposed by a judge.  Otherwise they risk potential future financial claims, even years into the future.

If you or someone you know would benefit from advice as a result of marriage or divorce, please do contact me on 01865 781115 or gemma.nicholls-webber@freeths.co.uk. For more information please see our guide at http://www.freethsoxford.co.uk/divorce_and_family_finances.

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Australians have overwhelmingly voted in favour of legalising same-sex marriage in a historic poll.

The non-binding postal vote showed 61.6% of people favour allowing same-sex couples to wed, the Australian Bureau of Statistics said.

Jubilant supporters have been celebrating in public spaces, waving rainbow flags and singing and dancing.

A bill to change the law was introduced into the Senate late on Wednesday. It will now be debated for amendments.

Pensions and Divorce

During the financial discussions as part of divorce proceedings, full financial disclosure is required. This includes disclosure of pension assets. Often one spouse’s pension provision is significantly higher than the other’s. This can be explained by salary differences, maternity breaks, pre marital contributions, age differences or choices made by the couple during the marriage.

There are several ways that the pension imbalance can be dealt with. This includes obtaining a Pension Sharing order and offsetting some or all of the pension against other assets. Actuaries and pension experts are often asked to write joint reports to determine what shares and amounts should be divided to enable a fair outcome to be achieved.

As a family lawyer, and mediator, I often hear a spouse say they are not interested in the pensions. This is normally because they see pensions as an asset that is not realisable for some time and of little use right now. However the attached article highlights the effect such an approach can have, especially on women.

Further information about pensions and divorce can be found at:- www.freethsoxford.co.uk/divorcepension

If you have any queries please do not hesitate to contact me.

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Overall, women are less well prepared for retirement than men, with 52 per cent saving adequately for the future, compared with 59 per cent, respectively, the survey showed.This figure falls to below half for divorced women, with nearly a quarter saying they are unable to save anything at all into a pension, twice the rate of divorced men saving nothing.Even if pensions are discussed during a divorce settlement, women are still missing out – 16 per cent lost access to any pension pot when they split with their partner and 10 per cent were left relying completely on the state pension, Scottish Widows said
Divorce to have your marriage recognised?

The options for civil partners to backdate and register their partnership as a marriage in this country has created a legal issue in France.

The French requirements for an overseas marriage to be considered as valid and recognised are not met by civil partnerships that have been converted into marriage here. This leaves same sex couples who are married in a situation where they are not married in the eyes of French law, but not able to marry in France as they are not single. Obviously the impact is far reaching for affected couples hoping to live in France, especially where they have children.

If you have any queries about civil partnerships or the issues identified in the attached article, please do not hesitate to contact me.

Www.freethsoxford.co.uk/civil_partnership

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In France, legally-recognised marriages must have had a wedding ceremony with witnesses, and the marriage certificate must reflect the date of the wedding itself.This means that backdated marriages from the UK are fundamentally incompatible with French law, and French officials say they are unable to recognise them.
Surrogate mother of 'twins' finds one is hers

A surrogate mother from California has been reunited with her infant son, after discovering that one of the two babies she carried for a Chinese couple was actually biologically hers. 

Because of a rare medical condition which caused her to continue ovulating during pregnancy, Jessica Allen unintentionally conceived a child of her own whilst already around six weeks pregnant with the child she was carrying for the intended parents in China. Her doctors initially thought that the two babies were twins. Because the Chinese couple were the baby's legal parents, Mrs Allen and her husband had to go through a complex legal battle to bring him home. 

Although this is an international case, and the circumstances are extraordinary, it is still a cautionary tale for anybody considering entering into a surrogacy arrangement. In the UK, the surrogate remains the legal parent of the child until the intended parents obtain a court order transferring legal parenthood to them. They have six months from the date of the child's birth to make their application for this court order. The surrogate must consent to the order being granted, and at least one of the intended parents must be the biological parent of the child. It is vital that any question marks over the child's biological parentage are dealt with during that time.    

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Surrogate mother of 'twins' finds one is hers
Grounds for divorce?

The latest report by Nuffield Foundation makes interesting reading, although based on my experience the findings are not surprising.

The report has focused on the fault based divorce system we have in this country and has found it encourages divorces on the basis of unreasonable behaviour or adultery.  

I agree as these are the only ways available to prove the required test of irretrievable breakdown of their marriage if they want to avoid the uncertainty of waiting for 2 years before completing their divorce and having a binding financial arrangement.

To use adultery as a basis for divorce, the most common route is for the other person to agree to admit to having had a sexual relationship with another person.  I find there is confusion about this, because the relationship does not have to have happened before the couple separated and so any relationship after separation can be used.

Where there is no other person involved, an unreasonable behaviour petition is another option.  Often people do not realise that this does not have to involve making allegations of abuse or physical violence.  Instead the courts tend to take a practical view and accept a much lower level of behaviour examples, such as moving from the family home or refusing the socialise with the petitioner.  

The nature of the unreasonable behaviour needed is currently the subject of an appeal to the Supreme Court (following the Court of Appeal judgement in Owens v Owens  [2017] EWCA Civ 182 where the wife's petition was refused).

I regularly work with people to prepare their divorce petitions before filing them at court to make sure that they are approved by the judge.  This includes drafting appropriate particulars in the petition to support their divorce and taking the right steps to minimise the possibility that their former spouse will defend the petition.  

However, I have seen some petitions drafted very badly by people and even other solicitors, particularly those dealing with unreasonable behaviour that are unnecessarily aggressive, which only serve to increase the disagreements between the couple and inflate their legal costs.

This latest research will add more weight to the arguments for a change in our divorce system that is long overdue, but in the meantime my team and I will continue to work for our clients to minimise the possible negative impacts of the existing law.

If you would like more information about divorce please do contact me.  You can also find my firm's guide to divorce at http://www.freethsoxford.co.uk/divorce_solicitors

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New research published today by the Nuffield Foundation shows that divorce law in England and Wales is incentivising people to exaggerate claims of ‘behaviour’ or adultery to get a quicker divorce. In practice, these claims cannot be investigated by the court or easily rebutted by the responding party, leading to unnecessary conflict and a system that is inherently unfair.
Top 10 tips for relationships

As a family lawyer, working with couples both dealing with breakdowns of the relationship and protecting relationships, I have seen a number of situations where relationships deteriorate over what appears to have been simple issues that have become unresolvable. Over this period of time, I have learnt a lot about why relationships fail and often see the practical consequences of not taking care of your relationship. I was asked to write a blog for Birth Baby Balance, about this issue, which I hope will be of interest to you.

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Try to remember there is no such thing as a perfect marriage. We all strive to have the best possible relationship we can, but often what we see on social media, in the general press and what is portrayed by those we meet is not as it appears and as the old age saying “what goes on behind closed doors” refers to is often that what appears perfect really is not what we would define as perfect. In an age of social media, it is often difficult not to compare our own relationship and life with those of others, which have been filtered to perfection. Keep in mind what you want from your relationship as your focus, rather than what others want from theirs.
What's the impact of the universal credit on spousal maintenance?

In April 2013, a welfare benefit known as the Universal Credit, or "UC" was introduced by the Welfare Reform Act 2012.  The UC replaces seven of the main means-tested benefits and tax credits, including child and working tax credit. 

For those individuals currently on tax credits there is nothing to be concerned about as they're safe until 2019; But if an individual comes off tax credits and then later needs to make a fresh benefits application, it will be for the UC provided they meet the criteria. 

The main political parties remain committed to it's principle as it is still considered to be a simpler benefits system.

However, there are some really important changes in relation to the impact the UC has on a) unearned income, which includes pension income from early retirement, b) spousal maintenance and c) surplus capital (i.e. savings).

Currently, both spousal and child maintenance are ignored for the purposes of calculating tax credits, which is a significant benefit that is very regularly taken into account when assessing the appropriate level of order. 

With the UC, however, whilst child maintenance will continue to be disregarded, spousal maintenance will be deducted pound for pound.

In respect of capital, anything under £6,000 is ignored when assessing eligibility for UC.  

Anything between £6,000 and £16,000 is treated as if it produces a monthly income of £4.35 for each £250 or part of £250, irrespective of whether you actually achieve that return. 

There are transitional provisions for those currently on tax credits so that if they move on to UC in due course they will be no worse off due to the change and it's worth looking at the following website for further information:

http://revenuebenefits.org.uk/universal-credit/guidance/entitlement-to-uc/transitional-protection/

If you're think this may have an impact on your circumstances, please don't hesitate to get in touch.

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Universal credit: Transitional protection

The Government have said that anyone that is ‘managed migrated’ over to Universal Credit will not lose out in cash terms where their circumstances remain the same. In order to ensure this happens, UC will include a transitional protection in the form of an additional amount to make up the difference between UC amount and what the claimant was receiving from the legacy benefit (for example tax credits).

IVF patients 'facing postcode lottery' after NHS budgets slashed

A campaign group has said that cuts to IVF provision by many local NHS clinical commissioning groups (CCGs) have left people seeking fertility treatment facing a 'postcode lottery'. 

The findings were the result of an audit of NHS funded fertility treatment by Fertility Fairness, published to coincide with National Fertility Awareness Week. 

Barely one in ten CCGs still offer the recommended three cycles of treatment. Many have reduced this to one. Some have effectively eliminated NHS funded fertility treatment altogether.

The NHS cuts have left many prospective parents trying to fund private treatment. Many of the UK's major fertility clinics and campaigning organisations will be exhibiting at this weekend's London Fertility Show at Olympia in Kensington, and Freeths will be there to talk about how to deal with some of the legal issues surrounding fertility treatment.     

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IVF patients 'facing postcode lottery' after NHS budgets slashed
Closing child maintenance loopholes

New powers are going to be introduced for the Child Maintenance Service to assist with continued difficulties in collecting child maintenance arrears.

Until now maintenance payment arrears could not be taken from accounts where there are other account holders. There were fears accounts were often put in joint names with third parties to avoid the CMS being able to make claim against the balance in such accounts. The DWP has consulted on this issue and concluded such accounts can be pursued, after forensic examination of how the account is used by the joint account holders. This is intended to protect accounts where the balance may properly be jointly owned. There are likely to be some issues and costs involved in this change to the CMS powers, but it is interesting to see the attempts being made to restrict child maintenance avoiders!

If you have any queries about child maintenance calculations, appeals or enforcement please do not hesitate to contact me.

More information can be found at:-

Www.freeths.co.uk/child-maintenance

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These include taking from a joint account only when the paying parent does not have their own account - or there is not enough money in their own account.Bank statements will be reviewed to establish which funds belong to the paying parent, and both account holders will be given the right to make their case before any money is taken.
Government money being invested in online divorce forms

The idea of an online system that prevents or even reduces delay has to be a good one. However, this article is misleading. Sorting out the divorce paperwork represents only a fraction of the work that has to be done. There is no mention of making sure a couple have an order about their finances or that if they don’t get an order they can still claim against each other in the future even if legally divorced.

We offer a fixed price for the divorce paperwork and the financial order if everything is agreed to make sure there is both clarity and finality for the people we represent.

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Covert recordings & a Court's approach

Ever tempted to record your  ex-partner's conversations?

It's not unusual for this issue to crop up in cases and I've had experience before where a client has made recordings of conversations that may be relevant to issues in a case.

This article discusses the issue and what the Court has to grapple with when deciding whether to allow such evidence in hearings, although the Court does have powers to exclude it.  It very much depends on whether the recordings are relevant to the issues.

If you're going through a separation and need advice about this issue or would like further information, please don't hesitate to get in touch.

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Last week Sir James Munby, President of the Family Division of the High Court, said that covert recording had become a 'much more pressing issue' in family proceedings. In particular he highlighted the increased prevalence of recordings of children, other family members and even professionals being placed before the courts as evidence to support one party's position or to undermine the others.
Drinking in front of the children?

Having the odd alcoholic drink when with children is something most parents wouldn’t consider unusual.

However drinking to excess or repeated drinking in front of children, even if only moderately, is now reported to have a potential impact on the children including anxiety, embarrassment and emotional issues.

As a family lawyer I sometimes see the drinking habits of parents questioned, particularly when one parent believes the other is drinking to excess in front of the child. Research such as this will help to show the potential damage on the child of such behaviour.

If you have any queries about the arrangements for children following separation, please do not hesitate to contact me.

Further information about the arrangements for children can be found at:-

Www.freethsoxford.co.uk/children

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Moderate drinking by parents can have a negative impact on children, causing anxiety and disrupting bedtime routines, a study says.The Institute of Alcohol Studies said parents do not have to regularly drink large amounts around children for them to notice changes in adults' behaviour.Three in 10 parents said they have been drunk in front of their children and five in 10 "tipsy", its survey found.
Divorce Hits Highest Levels since 2009 for Opposite-Sex Couples

Official figures have shown that there was a 5.8% increase in divorces between opposite-sex couples in England and Wales in 2016 compared to 2015. It means that divorce is at its highest level since 2009. It is also the biggest year on year increase in over three decades. 

The charity and relationship guidance organisation Relate has speculated that the pressures of rising debt and stagnant wages may be to blame for the spike in the figures.   

Same-sex marriage became legal in 2014, and figures on same-sex divorce are starting to become available. Interestingly, 78% of same-sex divorces in 2016 were of female couples. 

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Divorce numbers for opposite-sex couples highest since 2009
Smacking children to be banned in Scotland

Legislation to completely outlaw physical chastisement of children is likely to pass through the Scottish parliament in the coming months, after the SNP government in Edinburgh announced it would support the measure to abolish the defence of "justifiable assault" in Scottish criminal law. There will now be pressure for the rest of the UK to follow suit.

When it comes to the family courts in England and Wales, physical chastisement is not necessarily considered an absolute bar to a child spending time with a parent. However, an ongoing pattern of incidents, or particularly serious incidents involving a child being struck around the head or with an implement, will very often lead to unsupervised face to face contact being stopped. 

It will be interesting to see if the criminal law reforms set to take place in Scotland prompt similar action in England and Wales, and whether this contributes to a shift in attitudes towards physical chastisement of children in the family courts.  

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Smacking children to be banned in Scotland
Men & Marriage - debunking the ball & chain myth

This is an interesting article that highlights the benefits of marriage to men, despite entrenched views in society (particularly amongst young men) that it's not worth it.

Statistics show that men who are married earn between 10% & 40% more then their single counterparts, have a better sex life and improved physical and mental health benefits.

As a family lawyer, it's worth bearing in mind that we don't just work with clients looking to separate.  We also help clients who have every intention of a long and happy marriage, but want to protect their financial position by way of a marital agreement. 

If you'd like to find out more, please get in touch.

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Marriage is not worth it for men. It’s not worth the practical and financial sacrifices, the lost romantic opportunities, or the “lack of freedom.”

All in all, a spouse is a ball and chain—of little benefit to any man interested in pursuing happiness and well-being.

Considering both the latest survey data and the continuing decline in the marriage rate, it’s fair to say that this viewpoint is becoming more entrenched in our society, particularly among younger men.

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